Publication details
L´agonie sans fin du principe de non-invocabilité du droit interne
| Title in English | The neverending agony of the principle of non-invocability of internal law |
|---|---|
| Authors | |
| Year of publication | 2017 |
| Type | Article in Periodical |
| Magazine / Source | Revue générale de droit international public |
| MU Faculty or unit | |
| Citation | |
| Web | Repozitář MU |
| Field | Law sciences |
| Keywords | non-invocability; internal law |
| Attached files | |
| Description | There is an obvious dissonance between, on the one hand, the requirements imposed by the principle of non-invocability of municipal law (Article 27 of the Convention on the Law of Treaties), including also the supremacy of international law, as laid down by the PCIJ and further set out by the more recent international case-law, and, on the other, the numerous legislative or constitutional practices as well as municipal case-law, which ignore those requirements or even challenge them. That is not a temporal, transient phenomenon: the wide-spread States' practice of introducing international law into their municipal law by unilateral acts of reception has resulted into a „domestication” of international law. That tendency has two consequences: first, it “amputates” the principle of non-invocability from its effects on the constitutional level. Second, the power to organize for the means of performing international obligations is often understood as a sovereign power, exercised entirely outside the obligations imposed on the basis of Articles 26 and 27 of the Vienna Convention. That practice undermines the ability of international law to coordinate effectively cooperation between States. This article suggests to rebalance both legal systems: instead of rehearsing and recycling the ancient theories of its supremacy, international law and its institutions, in particular the ILC and the ICJ ought to take the initiative of demonstrating the gravity of the situation to the States and providing them with clear and convincing answers to the present uncertainties. |